NCAA puts power in question with rapid decision regarding Penn State

"Believe it or not, the NCAA is not some cabal of five or six shadowy figures sitting in Indianapolis trying to conceive of ever more devious schemes to get

"Believe it or not, the NCAA is not some cabal of five or six shadowy figures sitting in Indianapolis trying to conceive of ever more devious schemes to get rich off the backs of 20-year-old athletes," I wrote in 2010. "It truly is an organization run by its members, and there are hundreds of members."

"It's too easy to paint the NCAA as a bureaucratic boogeyman run by five or six Illuminati who sit in Indianapolis and dream up new ways to oppress athletes," I wrote in 2011. "That simply isn't the case. The people who work at the NCAA national office don't make the rules, and most are good, hardworking people who truly do care about the athletes. The NCAA is a representative democracy. The schools make the rules."

NCAA president Mark Emmert may prove me wrong.

On Monday at 9 a.m., Emmert and Oregon State president Ed Ray, the NCAA executive committee chair, will announce how the NCAA intends to penalize Penn State's football program for the cover-up that allowed former Nittany Lions defensive coordinator Jerry Sandusky to continue raping children. The details of the penalties remain a mystery, so speculating on them here would be foolish. We know Penn State planned to suggest its own sanctions, so it is reasonable to surmise the school was consulted. Still, it is pertinent to discuss how the NCAA arrived at these penalties.

Whenever an NCAA issue arises, its public relations staff is quick to point out -- correctly -- that the NCAA is a representative democracy that does the will of its members. The organization's rules and enforcement procedures were discussed and voted upon by the leaders of the schools those rules and procedures affect. Those procedures have made the NCAA's justice system quite slow. Ask any USC football fan who waited years to learn how Reggie Bush's acceptance of money from two wannabe agents would ultimately affect the Trojans' football program.

Yet here we sit less than nine months from the release of the grand jury presentment that set this scandal into motion. We're less than two weeks from the release of former FBI director Louis Freeh's report that concluded former Penn State president Graham Spanier, former football coach Joe Paterno, former athletic director Tim Curley and former vice president Gary Schultz conspired for years to cover up an accusation that Sandusky had raped a boy in a shower in the Penn State football building in 2001. In this case, absolute power corrupted absolutely. That is plain to see. But it was pretty plain that Bush had taken money and that North Carolina's football program was rife with issues in 2010. Yet those cases took far longer and followed NCAA procedure. Penn State, in the parlance of the courthouse, is on a rocket docket.

Did Emmert pull a page from the dictator's playbook and ask for sweeping executive powers in the face of a crisis for which the democratically run organization had not planned? Is that why the NCAA's Board of Directors granted him the power to punish Penn State? I emailed the NCAA's chief spokespeople to find out how the penalty decision was made, but as of this writing, they have not responded. What we do know is that the NCAA did not follow its usual process in this case, and that should give pause to everyone in college athletics.

The NCAA's enforcement arm came into existence after the 1951 convention, when member schools repealed the divisive, five-year-old Sanity Code and replaced it with a more tolerable set of rules and regulations. The Sanity Code was the NCAA's first attempt to regulate behavior, but it failed in part because the only penalty was expulsion from the NCAA. After its repeal, schools worked to devise an enforcement strategy that afforded schools a process that didn't entirely mimic the judicial system but came somewhat close. The first major program hammered by the NCAA's enforcement arm was Kentucky's basketball team, which was banned for the 1952-53 season after an investigation into a point-shaving scandal in the late '40s. But, like all the cases after it, it followed the procedures designed by the schools themselves.

Make no mistake, the Penn State case places the NCAA in a nearly impossible position. While there is no evidence anyone at Penn State broke any actual NCAA rules -- which mostly govern amateurism, competitive equity and academic integrity -- this could be the worst scandal to hit major college sports. How can the NCAA ever punish another program for paying players, fixing grades or practicing too much if it doesn't punish Penn State? On the other hand, there are no procedures in place to punish a program for violations of state statute. If Penn State gets punished in this case, why hasn't the NCAA punished any other programs because someone broke the law?

Emmert and the NCAA cannot win here. If they suspend Penn State's football program for any length of time, they'll punish hundreds who had nothing to do with the cover-up. If they take away scholarships, they'll get ripped for not being harsh enough. The math will get ugly. (Example: If the NCAA were to strip Penn State of 50 scholarships, it will essentially be saying that USC's Bush taking money from an agent is three-fifths as bad as covering for a child rapist.) The most logical penalty would be a massive financial sanction or a lengthy postseason ban (5-10 years) with no other sanctions. The latter would effectively cripple the program -- elite players wouldn't want to go to Penn State -- while still allowing current players to play their sport and earn Penn State degrees if they so desire. It also would avoid punishing Penn State's other programs as well as the other football programs in the Big Ten, which might have suffered financially from a canceled season or a television ban.

No matter the penalty, it's important to ask why the NCAA would bypass its normal disciplinary process. Throughout his brief tenure, Emmert has made a habit of licking his finger and checking the wind before doing anything meaningful. The wind certainly blows in favor of harsh sanctions for Penn State. Does that justify Emmert increasing the power of the NCAA's executive branch at the expense of the democratic system the NCAA has used for decades? Maybe. He does take the lion's share of the abuse, even though NCAA rules -- to this point -- have allowed him precious little actual power. Power grabs usually happen during emergencies, and Emmert has one on his hands now. Also, Emmert has used this line of thinking to his benefit before.

In August 2011, a panel of 54 university presidents -- personally selected by Emmert -- assembled in Indianapolis for a two-day retreat. Fed up with scandals that had overwhelmed college sports, they resolved to take action. So, in rapid fashion, they pushed forward a number of dramatic reforms. These included raising the graduation-rate standards to be eligible for postseason play, rewriting the NCAA rulebook, revamping the NCAA penalty process, allowing schools to offer multiyear athletic scholarships and allowing schools to give up to a $2,000 stipend to help move scholarships toward the actual cost of attendance.

The lead quote the NCAA used in its news release from the event is quite telling.

"What stands out, above everything else, is the unanimity of thinking among university presidents who were assembled," a president said. "There is an unwavering determination to change a number of things about intercollegiate athletics today. Presidents are fed up with the rule breaking that is out there."

Which president said those words? Spanier, who, at the time, knew he was allowing an accused child rapist on his campus.

While the presidents hand-picked by Emmert may have been unanimous, the presidents who didn't get invited and many of their athletics staffs disagreed with some of the measures. (For the record, I agreed with all of them and praised their passage.) Fortunately for those who dissented, the rules still had to run through the NCAA's legislative process, so those who disagreed with the multiyear scholarship proposal (which ultimately passed) and those who disagreed with the stipend proposal (which ultimately failed) had their say.

Still, the speed of the process made some in the business uncomfortable. In March, an athletic director at a power conference school told me it concerned him that one man could push his agenda so forcefully. That athletic director wasn't alone. The override votes on the multiyear scholarship and stipend plans told us that.

This is obviously a different situation, but the upshot is the same. The NCAA's policies exist because the member schools voted them into existence. To bypass them is to silence the voices of the governed. So while it may satisfy the mob if Emmert hands down a sentence that crushes Penn State's football program, it should cause every athletic director and university president in the nation to question whether his school has a voice in the NCAA anymore.

Penn State will get penalized Monday. Then what? What happens the next time the agreed-upon process moves too slow for Emmert and he decides to play judge, jury and executioner for a different school? It's one thing when Commissioner Roger Goodell does that in a private business such as the NFL. It's quite another in the NCAA, which has a membership consisting mostly of public universities. Hopefully, Emmert will treat this like the emergency it is and hand back those powers as quickly as he grabbed them. Human nature and history suggest that isn't easy.

So maybe I won't have to include that disclaimer anymore. After this, it isn't clear whether the NCAA is a representative democracy anymore. Not if its executive branch has decided that the best way to punish an abuse of absolute power is by granting more absolute power.